Background checks are an important part of the hiring process and may be needed when making other personnel decisions. Performing background checks helps employers confirm they are hiring a reliable individual who will be successful on the job and aids in reducing possible risk to the employer. Background checks typically include:
- Criminal background
- Employment references
- Driving record (if job-related driving is required)
- Licenses and credentials that are required for some professions
When performing background checks, employers must follow federal laws (FCRA – Fair Credit Reporting Act and EEOC – Equal Employment Opportunity Commission guidelines) and state laws. Before starting the background check process, check the specific laws for your state and municipality. If you are working with a third party background check company, they will provide guidance about the required paperwork.
To stay in compliance with legal requirements, employers need to do the following related to background checks:
- Do not inquire about criminal history during the interview process.
- Do not perform the background check until you make a contingent job offer.
- When you make the job offer, the offer letter should state that the offer is contingent on successful completion of a background check.
- Individuals need to complete an authorization form for a background check.
- You can only consider criminal convictions, not arrests.
- If the employee has criminal background, you will need to make the decision (to hire or not) on a case-by-case basis considering how long ago the crime occurred, how old the individual was, how many convictions, the nature of the crime(s) and the risk posed to the company, and the individual’s history since the crime was committed.
- If you want to withdraw the job offer (or fire a current employee) due to the background check results, you must send the individual two letters – a) the first letter will state the person has 5 business days to provide documentation to dispute the background check record. With this letter, employers must send a copy of the background check results and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act; b) after 5 days, if no adequate documentation is provided, you must send a second letter stating that the job offer has been revoked.
- During the background check process, employers must not discriminate against individuals related to protected classes such as race, color, sex, religion, age, and other legally protected classes under federal, state, and local laws.
- Employees should not start work until the background check is completed.
- Background check results should be kept in confidential files, separate from personnel files.
For Assistance
Employers should review and update their human resources policies and procedures to reflect background check legal requirements. LJ Consulting can provide expert guidance on these laws. In addition, if you need a new employee handbook or need to update your current one, they can create a compliant, customized, and well-written employee handbook.